Underinclusion By Design In Human Trafficking Protection

Abstract

In 2000, the U.S. Congress passed landmark legislation to create the T visa, an immigration benefit designed to encourage survivors of human trafficking to cooperate with law enforcement and protect them from deportation. Yet, more than twenty-five years later, surprisingly little is known about how the T visa functions and disparities in legal protection. This is especially concerning given the program’s historic underutilization, the relative lack of other avenues to legal status for survivors of human trafficking, and the program’s more recent politicization.

This Article presents the results of the first mixed-methods empirical study exploring how survivors of human trafficking and their lawyers experience the T visa process. Our findings suggest that, despite congressional intent, the T visa imposes substantial administrative burdens on immigrant survivors, including learning, compliance, and psychological costs. Instead of alleviating fears of deportation, arrest, and reprisal, the T visa, by requiring that applicants interact with law enforcement and immigration officials, often exposes them to increased risks posed by these actors. Additionally, interviews with attorneys shed light on how, under the first Trump administration, immigration officials exploited the administrative application process to amplify burdens on survivors, restricting access to the T visa program and contributing to the program’s underutilization. Overall, the Article examines how, especially in a more hostile legal environment for immigrants, the T visa program is at risk of politicization and weaponization in new ways. The Article ultimately suggests ways to enhance access to the T visa program, so it can better achieve its humanitarian objectives.

Keywords: human trafficking, sex trafficking, labor trafficking, workers rights, migrant workers, labor exploitation, immigration, migration, border, intimate partner violence, smuggling, T visa, T Nonimmigrant Status, Removal, Deportation, Detention, Administrative Law, Immigration Law, Politicization, Administrative Burdens, Compliance Costs, Learning Costs, Psychological Costs